Posted by: Edward A. Fallone
Category: Constitutional Law, Election Law, First Amendment, Judges & Judicial Process, Legal Ethics, Political Processes & Rhetoric, Public, Wisconsin Court System, Wisconsin Law & Legal System
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We live in interesting times. A segment of the general public is quick to forgive the killing of two young men in Slinger, Wisconsin and Sanford, Florida as the unavoidable consequence of the exercise of a constitutional right. Yet at the same time, state court judges who have exercised their constitutional right of self-governance by signing a recall petition are being publicly called out by both special interest groups and the media, as if by signing the petition they have transgressed some moral boundary. These are interesting times, indeed.
The signing of a recall petition is a right guaranteed by Article XIII of the Wisconsin Constitution. It is a procedure whereby any voter can request that the continuation in office of an elected official in the State of Wisconsin should be put to the vote of the full electorate. If a sufficient number of voters sign the petition, a recall election is held. A recall can only succeed in removing the officeholder if both a sufficient number of recall signatures are filed and a majority of the electorate votes in favor of removal. The Recall is democratic self-governance in its purest form, and along with the Initiative and the Referendum it is one of the three structural vehicles by which Progressive Era voters sought to bypass the influence that special interests hold on elected bodies.
The Wisconsin GOP has filed an official complaint against Dane County Circuit Court Judge David Flanagan with the Judicial Commission on the grounds that the judge should have recused himself in a case challenging the constitutionality of the Wisconsin Voter ID law. Must judges who have signed a recall petition subsequently recuse themselves from sitting on any case in which the Governor, or Republican legislators, or the Republican Party of Wisconsin asserts that the signing of the petition evidences a bias against them? The answer is “no.” There is no explicit provision that prohibits judges from signing a recall petition or that mandates that they recuse themselves from any politically charged case if they have done so.
A judge’s disqualification is required by law under the circumstance set forth in Wis. Stat. 757.19, which generally lists instances in which a judge has a personal or financial connection to the case before the court. However, one section of the statute, Wis. Stat. 757.19(2)(g), also requires disqualification “[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.” This particular ground of mandatory disqualification is broad, however the Wisconsin Supreme Court has made it clear that the determination of whether the general provision of this subsection applies is to be left solely to the subjective determination of the judge. Donohoo v. Action Wisconsin, Inc., 754 N.W.2d 480 (Wis. 2008).
In the Donohoo case, Justice Butler, while still a Circuit Court judge, had appeared at a fundraiser benefitting a gay rights organization and had accepted the endorsement of an attorney who worked for the organization. The Wisconsin Supreme Court ruled that then-Judge Butler could decide that he was capable of being impartial in a subsequent case involving gay rights, and that he was not required to disqualify himself. The Court made it clear that the majority agreed with the Judicial Commission’s dismissal of a complaint arising out of the same facts: “As to Donohoo’s claim that Justice Butler acted improperly in attending the fund raiser, the Judicial Commission noted that ‘[j]udges and candidates for judicial office can announce their views on political and legal issues as long as they are not pledges or promises to decide cases in a certain way.’” Therefore, the relevant precedent in Wisconsin leads to the conclusion that the mandatory disqualification rule would not apply to the signing of a recall petition, unless the judge who signed the petition doubted their ability to decide the case before them in an impartial manner.
Because the disqualification grounds of Wis. Stat. 757.19 would not mandate the disqualification of Judge Flanagan in the Voter ID case, so long as he subjectively believed that he could continue on the case in an impartial manner, the question next turns to whether the Code of Judicial Conduct, as reflected in the Rules of the Wisconsin Supreme Court, is somehow violated when a state judge signs a recall petition. Once again, the answer is “no.” There is no provision of the Code of Judicial Conduct that prohibits a sitting judge from signing a recall petition.
For example, SCR 60.04(4) states that a judge should recuse herself when the facts and circumstances reveal a personal bias against a party or a lawyer involved in the case before her, an economic interest in the case before her, or where the judge has previously made a public statement on the merits of the legal issue involved in the case before her. None of these grounds apply to Judge Flanagan’s handling of the Voter ID case. Governor Walker is not a real party of interest in the Voter ID case. The Governor is named as a defendant in his official capacity as the highest Executive Branch official charged with enforcing an allegedly unconstitutional law. None of Scott Walker’s personal actions are at issue in the case and he faces no personal liability.
Naming a government official as a defendant in their official capacity is a common practice. It does not make Judge Flanagan’s personal opinion of Governor Walker relevant to the Voter ID case any more than Justice Scalia’s personal opinion of President Obama is relevant to the case challenging the constitutionality of the Affordable Care Act (one of the lawsuits challenging the Act named President Obama as a defendant). Constitutional Law textbooks are filled with cases with names like Perry v. (Arnold) Schwarzenegger, which challenged California’s law prohibiting same sex marriage. Even though Governor Schwarzenegger publicly opposed the law being challenged by the plaintiffs, and he joined the plaintiffs in calling for the law to be struck down, the lawsuit that the plaintiffs filed still names him as a defendant in his official capacity as Governor. SCR 60.04(4) does not apply.
Another potentially relevant rule is SCR 60.06, which is directed at “inappropriate political activity” by sitting judges and candidates for the judiciary. For example, SCR 60.06(2) prohibits judges from participating in the activities of a political party or a political candidate, or from endorsing the candidates of a political party. However, the plain language of this rule does not include the signing of a recall petition among the identified instances of “inappropriate political activity.”
Moreover, the nature of the political activity identified as prohibited suggests that the Rule is focused on public actions by judges that would undermine the public’s perception of the judiciary as a non-partisan institution. Many of the rule’s provisions specify the prohibition of public endorsements and publicly expressed opinions, as distinguished from privately expressed opinions. Think of a judge who appears in a television ad for another political candidate, while wearing judicial robes and being identified as a judge.
In contrast, the signing of a recall petition is not an action that is publicized by the judge, and the petition itself does not identify the signer as a member of the judiciary. It is true that the recall petition is an official document that is subject to public review. However, it is the supporters of Governor Walker who chose to turn the signing of the petition into a public act and to identify the signer as a member of the judiciary. None of the judges who signed a petition publicized the act or their judicial position.
Note that the rules do not prohibit all political activity, only “inappropriate” political activity. The comment to SCR 60.06(2)(e) states the following:
Although the rule contemplates the continuance of nonpartisanship on the part of Wisconsin judges and those seeking judicial office, judges are not expected to lead lives of seclusion. As members of the public and as public officeholders, judges may attend public events, even those sponsored by political parties or candidates, so long as the attendance does not constitute the kind of partisan activity prohibited by this rule. The judge, judicial candidate or judge-elect is responsible for so conducting herself or himself that her or his presence at the sponsored event is not made to appear as an endorsement or other prohibited political activity.
In other words, a judge may attend a partisan political event as a member of the public, without violating the Code of Judicial Conduct, so long as he or she does not call attention to themselves or to their official position. If a newspaper reporter recognized the judge at the event, and wrote a story publicizing the judge’s attendance, that would not transform the judge’s attendance at the event into a violation of the Rule. This comment further illustrates that SCR 60.06(2) is primarily focused towards political conduct that is intended for public consumption.
Could the literal language of SCR 60.06(2) nonetheless be interpreted to reach the signing of a recall petition? Yes, it could, if one takes the view that the words of any statute have the quality of Play-Doh, and are susceptible to being formed into whatever shape one desires. This seems to be the position of Rick Esenberg, who has argued in a blog post that the words of SCR 60.06(2) could be construed to apply to the signing of a recall petition without managing to articulate a reason why we should choose to interpret the words in such a fashion.
The last provision of the Judicial Code of Conduct that is arguably relevant to the signing of a recall petition is the general command contained in SCR 60.05(1)(a), wherein a judge is admonished to conduct their extra-judicial activity so as not to “cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Should this very general language be interpreted so as to apply to the signing of a recall petition?
Of course the language is capable of being applied to this situation – the language is so broad as to potentially apply to anything. When applying such broad language to a particular factual scenario, it is wise to reflect on the overall purpose of the broad prohibition.
In my opinion, the issue of judicial recusal has become muddied as both political parties seek to use it for their advantage. If the judge has received something of value from a party or an attorney, then they should recuse themselves because they are presumed to be in that person’s debt. This is the situation where Justice Gableman admittedly received free legal services from a law firm appearing before him.
However, campaign contributions received by a judge from a party or their lawyer don’t count as something of value unless the contributions are disproportionately large. See Caperton v. A.T. Massey Coal Company, 556 U.S. 868 (2009). This is a tricky distinction to make, as campaign contributions can also create the perception that the judge is in the donor’s debt, but it is a necessary distinction if we are going to elect judges.
Finally, judges should not feel obligated to recuse themselves because of previously expressed political opinions that are unrelated to the case before the judge. In contrast to the situation where they receive something of value, here the judge is entitled to the presumption that they can decide the case in good faith. This latter situation includes not only the signing of a recall petition but also attendance at conferences and events sponsored by liberal or conservative groups.
There are two problems with interpreting the broad language of SCR 60.05(1)(a) to reach the signing of a recall petition. First, it would then be impossible to distinguish the signing of a recall petition from other actions that might be perceived as expressing a generalized political view, such as speaking at a Federalist Society event or accepting an award from the American Civil Liberties Union. In particular, the general language of SCR 60.05(1)(a) should not be construed to require mandatory recusal in situations where the expression of a general political opinion would not lead to mandatory disqualification under Wis. Stat. 757.19(2)(g). In the Donohoo case, the Wisconsin Supreme Court interpreted both provisions in a parallel fashion. If the attendance at a fundraiser for a special interest group is not sufficient to create an automatic perception of bias requiring disqualification under the statute, then it should not require recusal under the Code of Judicial Conduct, and vice versa.
Second, the signing of the recall petition is a constitutional right, and we should not interpret the broad language of SCR 60.05(1)(a) so as to force judges to forego their constitutional rights absent a compelling reason. The need to identify some compelling state interest in policing a judge’s expression of general political opinions is grounded in the recognition that all expressions of political opinion are the exercise of a constitutional right. The rights guaranteed under the First Amendment of the federal Constitution prevent a state from mandating the recusal of a sitting judge who declares “I am a Democrat.” Seifert v. Alexander, 608 F.3d 974 (7th Cir. 2010). Similarly, the Wisconsin Constitution gives every voter who resides in this state the right to sign a recall petition. We ask our judges to comport themselves with integrity and to maintain an impartial attitude, but we do not demand that our state judges abandon all of their constitutional rights after being elected to the bench. The signing of a petition, without any attempt to draw attention to the act or to identify oneself as a judge, is not an effort to sway voters for partisan ends. There is therefore no compelling interest that would justify state regulation over this expression of opinion. This interpretation of the general requirement of impartiality in SCR 60.05(1)(a) is in accord with the general view of Justice Roggensack, who wrote for four members of the Wisconsin Supreme Court that recusal rules must be “narrowly tailored to meet a compelling interest.” In the Matter of Amendment of the Code of Judicial Conduct’s Rules on Recusal, 2010 Wis. 73, Para. 11.
Therefore, I conclude that the Code’s regulation of extra-judicial political activity should not extend to prohibit the signing of recall petitions. Interpreting the recusal rules in ways that seek to police the expression of generalized ideology on the part of state court judges is a fool’s game. We should not mandate the recusal of a judge unless their actions reveal a particular bias in relation to the actual parties, counsel or facts in the case before them. In a separate context, Rick Esenberg has noted, “[h]aving a view on a legal or political issue is not the type of bias with which the state may concern itself.” If You Speak Up, Must You Stand Down: Caperton and Its Limits, 45 Wake Forest L. Rev. 1287, 1327 (2010). If this statement is true as a matter of general principle (and I believe that it is), then the belief that Scott Walker should be subject to a recall election has no relevance to the ability of a judge to be impartial in a case challenging the Voter ID law.
My colleague Janine Geske, a former member of the Wisconsin Supreme Court, believes that Judge Flanagan and the others should have refrained from signing the recall petitions so as to avoid any possible perception of partiality. I have the utmost respect for Janine Geske, and I would sleep better at night if she were still a member of the Court. I certainly cannot criticize her for encouraging judges to avoid activity that creates even the slightest perception of partisan activity. However, I do not understand her to contend that the Code of Judicial Conduct as currently written prohibits the signing of recall petitions by judges. Clearly, it does not.
Judges should not be expected to conduct themselves so as to satisfy every unrealistic expectation of an oversensitive minority. After joining the United States Supreme Court, Justice William Brennan was stung by criticism that his attendance at a legal conference might be perceived by some as endorsing the views of the conference organizers. As a result, he declined every subsequent speaking invitation that he received, no matter what the group. His biographers Seth Stern and Stephen Wermiel note that this gregarious person maintained few professional friendships outside of his colleagues on the Supreme Court, and that having reached the pinnacle of the legal profession he became isolated from the practicing bar. Justice Brennan’s strict refusal to attend any legal conferences may have been scrupulous, but it was sadly unnecessary.
In the future, should we amend the recusal rules so that the rules explicitly mandate the recusal of judges who have expressed general political views that one of the parties finds objectionable?
There are two schools of thought. One group argues that after Caperton it would be useful to draft more explicit provisions setting forth the grounds for recusal in a wide variety of situations where the public may perceive the existence of bias. These commentators argue that a general “impartiality” standard is insufficient to protect litigants from judicial bias, but that more focused rules would be more successful. Among the exponents of this view are Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 B.U.U. L. Rev. 943 and Tobin A. Sparling, Keeping up Appearances: The Constitutionality of the Model Code of Judicial Conduct’s Prohibition of Extrajudicial Speech Creating the Appearance of Bias, 19 Geo. J. Legal Ethics 441 (2006).
A second school of thought argues that this approach is folly. Judges have the same opinions, beliefs and pre-dispositions as anyone else, and it is impossible to guarantee any litigant a judge for their case who has never previously expressed any political, social or economic point of view. Among the exponents of this view are Erwin Chemerinsky, Restrictions on the Speech of Judicial Candidates Are Unconstitutional, 35 Ind. L. Rev. 735 (2002) and James Bopp, Jr. & Anita Woudenberg, An Announce Clause by Any Other Name: The Unconstitutionality of Disciplining Judges Who Fail to Disqualify Themselves for Exercising Their Freedom to Speak, 55 Drake L. Rev. 723 (2007).
I agree with the second school of thought. Parties have a reasonable expectation that their judge will not be biased towards their particular case; parties have no reasonable basis to expect that their judge is a blank slate who has never formed a political opinion on any issue nor adopted any religious or moral points of view. Rather than policing the expression of general ideology by members of the judiciary, the bar and the public should instead scrutinize the written opinions of judges to ensure that those opinions fairly discuss and resolve the arguments of counsel. The role of the judge is to put their ideology aside and to give the legal arguments of the parties a fair hearing, not to divest themselves of any vestiges of ideology in their personal life.
I suspect that even the drafters of the complaint filed against Judge Flanagan with the Judicial Commission are aware of the tenuous nature of their legal argument. The Complaint filed by the Wisconsin GOP relies primarily upon a 2006 Court of Appeals decision named State v. Gudgeon that involves neither Section 757.19 nor SCR 60.05. Nowhere does the Complaint by the Wisconsin GOP discuss the 2008 Donohoo opinion of the Wisconsin Supreme Court which is directly on point. Perhaps the Wisconsin GOP views their complaint as nothing more than a bargaining chip, whereby the Judicial Commission might be inspired to drop the complaint against Justice Prosser in order to avoid deciding the complaints against Judge Flanagan and the other state judges who have signed recall petitions against the Governor. If so, then they fail to appreciate how absurd it is to equate charges of physical assault (subject to the separate provisions of SCR 60.03) with the lawful exercise of a constitutional right.
More likely, the drafters of the Complaint fully expect that the Judicial Commission will reject their complaint against Judge Flanagan while at the same time continuing the investigation of Justice Prosser. This eminently foreseeable result would serve their broader purpose of undermining the public’s confidence in the Judicial Commission, by giving Judge Flanagan’s critics an excuse to make unfounded claims of partisan bias. Other attacks on the integrity of the Judicial Commission by the group Media Trackers have proven groundless, but that is unlikely to deter the steady drumbeat of criticism that various groups have directed at the Judicial Commission. The goal of these critics is to influence public opinion through the vehicle of inflammatory allegations, and not to raise issues of legitimate concern relating to the administration of justice.
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